Monday, July 3, 2017

On December 19, 2013, in Robinson Township v. Commonwealth of Pennsylvania, the Pennsylvania Supreme Court held unconstitutional major parts of Pennsylvania’s Act 13—a 2012 oil and gas law designed to facilitate the development of natural gas from Marcellus Shale.

In so doing, the Court breathed new life into Article I, Section 27 of Pennsylvania’s constitution, the state’s Environmental Rights Amendment, which requires the state to “conserve and maintain” public natural resources “for the benefit of all the people.”But it did so by a plurality; only three of the Court’s seven justices signed onto that opinion.

Since that time, judges, lawyers, and government agencies all said that, while the Robinson Township decision is interesting and important, it is not the law of Pennsylvania on Article I, Section 27.

Instead, they continued to apply a three-part balancing test that Commonwealth Court invented in 1973 as a substitute for the text of the amendment.

That all changed on June 20. In Pennsylvania Environmental Defense Foundation v Commonwealth, the Supreme Court decided by a clear majority that the state has a constitutional obligation under Article I, Section 27, to manage state parks and forests, including the oil and gas they contain, as a trustee.

The Court also held that the “constitutional language controls how the Commonwealth may dispose of any proceeds generated from the sale of its public natural resources.” Justice Baer described the decision as “monumental.”

And he is right.

The Court set aside the three-part balancing test that had been used for more than four decades, and it did so by a majority decision. It held that the text of Article I, Section 27 provides the rules to be applied in any case.

It also reaffirmed that the constitutional public trust is self-executing; it does not need further legislation in order to be applied.

The Court’s attentiveness to the text of Article I, Section 27 was underscored by its careful analysis of the legislative history, showing, among other things, how the Environmental Rights Amendment had been amended several times during the legislative process before it was approved by Pennsylvania voters in 1971 by a four-to-one vote.

It also held that the rules governing management of public trust resources also apply to the expenditure of of royalties and perhaps other funds received from oil and gas leases on those resources.

More broadly, the case signaled the Court’s willingness to enforce the public trust doctrine. This case was decided on same day as another public trust case, In Re: Petition of the Borough of Downingtown, in which the Court used common law public trust principles to invalidate the transfer of significant parts of a public park to a real estate developer.

But as it did all of these things, the decision also challenges judges, lawyers, state agencies, local governments and others to develop a workable and meaningful way of applying the text of the Environmental Rights Amendment in a variety of contexts.

The Long Wait is Over

Immediately after the decision, I spoke with Franklin Kury, who as a young lawyer and Pennsylvania House of Representatives member authored and championed Article I, Section 27 between 1969 and 1971. For more than four decades, he never gave up hope that the Environmental Rights Amendment would have a bigger impact. “There is always the potential,” he wrote in 2011, “for a future court to apply the amendment in ways that we cannot now imagine….” Now 80, he said, “I’m glad I lived long enough to see this.”

He added: “Both the PEDF and Robinson Township cases underscore the critical importance of building a solid legislative record in the official records of the House (or Senate) before the proposal is enacted. I was well aware of this while the environmental amendment proposal was going through the House and Senate. I made two floor speeches explaining the intent of the proposal and inserted into the House Journal Professor Robert Broughton’s legal analysis.” (The legislative history is available here.)

“It took over four decades, but when the Supreme Court researched the legislative record, they found it all and used great portions of it. I feel really good about this. It was well worth the wait.”

The remainder of this blog post will describe the background of this landmark case and each of the Supreme Court’s opinions.

Click Here to read Professor Dernbach’s entire blog post on this important and timely topic and what these decisions may herald for the future.

John Dernbachis the Distinguished Professor of Law at Widener University’s Harrisburg campus. He can be contacted by calling 717-541-1933 or Click Here to contact him online.

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About Me

This Blog is a companion to www.PaEnvironmentDigest.com, the weekly online newsletter published by Crisci Associates, Harrisburg, PA.
I can be contacted at 717-576-0420 or by sending email to: DHess@CrisciAssociates.com.
I served as Secretary of the Pennsylvania Department of Environmental Protection from 2001 to 2003, Executive Deputy at DEP from 1995 to 2001, as staff to the PA Senate Environmental Committee and various positions in the former Department of Environmental Resources, working on environmental issues for nearly 40 years.